Tort reform and the right to trial

In Missouri a political battle continues over tort reform.  With a GOP supermajority, the Republicans are examining options after the Missouri Supreme Court declared a tort reform law unconstitutional.  The state law placed a cap on non-economic damages in medical malpractice cases.  The court ruled, in a split ruling, that the right to trial by jury, as codified in the MO constitution, prevents the legislative reform effort.  As reported by the AP[1], the MO court using founders intent noted that there was a right to seek such damages when the state constitution was adopted, therefore, the legislature can’t restrict the fact-finding role of the jury.

The Missouri Supreme Court’s reasoning is applicable to the 6th Amendment right to trial by jury.  The same argument was used by the Court to strike federal mandatory sentencing guidelines and similar guidelines in the state of Washington.  As Justice Scalia wrote in Blakely v. Washington (542 US 296 2004)[2]:

“… [T]he State tries to distinguish Apprendi and Ring by pointing out that the enumerated grounds for departure in its regime are illustrative rather than exhaustive. This distinction is immaterial. Whether the judge’s authority to impose an enhanced sentence depends on finding a specified fact (as in Apprendi ), one of several specified facts (as in Ring), or any aggravating fact (as here), it remains the case that the jury’s verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact.

Because the State’s sentencing procedure did not comply with the Sixth Amendment, petitioner’s sentence is invalid.”

The next term the Court applied the same logic to the federal sentencing guidelines (543 US 220 2005).

For the issue of tort reform, it is more important to determine if the Missouri Supreme Court’s reasoning also applies to the right trial by jury in civil cases in the Missouri Constitution and by extension the the 7th Amendment.[3]  It stands to reason that facts determined by the judge (ground for departure) or by the legislature (an arbitrary cap on damages regardless of the facts of the case) are equivalent.  In neither case does “the jury’s verdict alone” determine the final outcome.  Therefore, whether the case is criminal or civil is irrelevant to the legal analysis.

However, it is also possible that the Court would distinguish tort reform from mandatory sentencing guidelines as the latter are dealing with the infringement of liberty (6th Amendment) rather than the ability to provide additional compensatory damages (i.e. pain and suffering) (7th Amendment).  Is this a legitimate distinction?  The founders did place the two ‘right to trials’ in two different amendments suggesting that they are not necessarily equivalent.  The doctrine of non-superfluous clauses could rear its head once again[4]; if the framers meant the right to trial for criminal cases and civil cases to be equivalent, then they would not have placed them in separate amendments. If the current Court is unwilling to make this distinction, then the hoopla and extensive lobbying efforts on both sides of this issue may be a large waste of time, effort, and money.  The 7th Amendment may make tort reform a moot issue for politicians and interest groups.


[3] The 7th Amendment issue is somewhat hypothetical.  The Court has not incorporated this amendment, and it would have to do so for the tort reform movement to be mooted in all states.  The argument still holds for federal tort reform.

[4] see Hurtado v. CA (page 70 of CLCA: Rights, Liberties, and Justice 8th edition).

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2 Comments

Filed under Attorneys, Trials, and Punishments, The Legislature

2 responses to “Tort reform and the right to trial

  1. Kevin McCloud

    How much bearing does the 1908 Supreme Court case of Cold Storage v. City of Chicago have on this issue? If the FDA is able to go into a facility and destroy consumable goods without prior warning or notice to the people operating the facility, could this be applied In this case? I understand that suspected “tainted” chicken is defferent than marijuana, but is this still a police power afforded to the Food and DRUG Administration?

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